2011-11965. Occupational Injury and Illness Recording and Reporting Requirements

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Notice of limited reopening of rulemaking record.

SUMMARY:

OSHA is reopening the rulemaking record to allow interested persons, particularly small businesses, to comment on the information gathered and on issues raised during the small business teleconferences that the Agency and the Small Business Administration's Office of Advocacy (SBA Office of Advocacy) co-sponsored on April 11-12, 2011. The purpose of the teleconferences was to gather information from small businesses about their experiences recording work-related musculoskeletal disorders (MSDs) and how they believe they would be impacted by OSHA's proposed rule to revise its Recordkeeping regulations to restore a column on the OSHA 300 Log that employers would have to check if a case they already are required to record is an MSD. The record will remain open for 30 days for comment on these limited issues.

DATES:

Comments must be submitted (postmarked, sent, received) by June 16, 2011.

ADDRESSES:

You may submit comments using one of the following methods:

Electronically: You may submit comments and attachments electronically at http://www.regulations.gov,, which is the Federal eRulemaking Portal. Follow the on-line instructions for submitting comments electronically;

Fax: If your comments, including attachments, do not exceed 10 pages, you may fax them to the OSHA Docket Office at [phone]; or

Mail, hand delivery, express mail, messenger or courier: You may submit your comments and attachments to the OSHA Docket Office, Docket Number OSHA-2009-0044, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone] (TTY number [phone]). Deliveries (hand, express mail, messenger, courier) are accepted during the Department of Labor's and Docket Office's normal business hours, 8:15 a.m.-4:45 p.m., e.t.

Instructions: All submissions must include the docket number (Docket No. OSHA-2009-0044) or RIN number (RIN No. 1218-AC45) for this rulemaking. Because of security-related procedures, submitting comments by regular mail may result in significant delay. Please contact the OSHA Docket Office for information about security procedures for submitting comments by hand delivery, express delivery, messenger or courier service.

OSHA places all comments, including any personal information you provide, in the public docket without change and the comments may be made available online at http://www.regulations.gov. Therefore, OSHA cautions you about submitting personal information such as social security numbers and birthdates. For further information on submitting comments, see the “Public Participation” heading in the SUPPLEMENTARY INFORMATION section of this notice.

FOR FURTHER INFORMATION CONTACT:

For press inquiries: Diana Petterson, Office of Public Affairs, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone]; e-mail [e-mail].

For general and technical information: Dorothy Dougherty, Director, OSHA, Directorate of Standards and Guidance, Room N-3718, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone].

SUPPLEMENTARY INFORMATION:

References and Exhibits

This notice references documents in the public docket of this rulemaking (Docket No. OSHA-2009-0044). They are available on the Internet at http://www.regulations.gov,, the Federal eRulemaking Portal. The referenced documents are identified as “Ex.” followed by the document number. The document number is the last sequence of numbers in the Document ID Number on http://www.regulations.gov. For example, the proposed rule, which is Document ID Number OSHA-2009-0044-0001 at http://www.regulations.gov,, is Ex. 1.

Background

On January 29, 2010, OSHA proposed to revise its Occupational Injury and Illness Recording and Reporting (Recordkeeping) regulation to restore a column to the OSHA 300 Log that employers would have to check if a case they already are required to record under the existing Recordkeeping rule is an MSD (Ex. 1; 75 FR 4728 (1/29/2010)). The proposed rule would not change the existing Recordkeeping requirements about when and under what circumstances employers must record work-related injuries and illnesses. Under the existing Recordkeeping rule (66 FR 5916 (1/19/2001)) employers already must determine whether a case is recordable; that is, whether the case meets the definition of “injury or illness,” is a new case, is work-related, and meets at least one of the recording criteria (e.g., involves days away from work, restricted work, or medical treatment beyond first aid). The only additional requirement the proposed rule would impose is for employers to mark the MSD column box on the OSHA 300 Log if a case they have already recorded meets the definition of an MSD. The proposed rule would define an MSD, for recordkeeping purposes only, as a disorder of the of the muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that was not caused by a slip, trip, fall, motor vehicle accident or similar accident (Proposed § 1904.12(b)(1); Ex. 1; 75 FR 4740).

OSHA's revised 2001 Recordkeeping rule included an MSD column, but that provision never became effective and was deleted in 2003 (68 FR 38601 (6/30/2003)). In proposing to restore the MSD column, OSHA explained:

After further consideration and analysis, OSHA believes that the MSD column would provide valuable information for maintaining complete and accurate national occupational injury and illness statistics; assist OSHA in targeting its inspection, outreach, guidance, and enforcement efforts to address MSDs; and provide easily identifiable information at the establishment level that will be useful for both employers and employees (75 FR 4731).

In the proposed rule, OSHA estimated that 1.505 million recordable MSDs were expected to occur annually among the 1.542 million affected establishments. Therefore, the economic impact of the proposed rule on any affected establishment would be quite small (75 FR 4737). OSHA estimated the annualized costs of the proposed rule would be $1.379 million per year for all affected establishments combined ($4 per establishment the first year and 67 cents in future years). The costs represent the time that establishments would need to become familiar with the rule (5 minutes per establishment the first year) and to determine if the recordable case meets the MSD definition and check the MSD column (1 minute per MSD annually).

OSHA provided 60 days for stakeholders to submit comments on the proposed rule (75 FR 10738 (3/9/2010)), consistent with Executive Orders 12866 and 13563 (58 FR 51735; 76 FR 3821). OSHA also held a public meeting on March 9, 2010, to allow stakeholders to make oral presentations and question the Agency about the proposed rule. The transcript of the public meeting is in the public docket of this rulemaking (Ex. 56).

See the notice of proposed rulemaking (OSHA-2009-0044-0001) for additional information on the events leading to this rulemaking and the history of the 2001 Recordkeeping rulemaking as well as a detailed explanation of the proposed MSD column provision, OSHA's reasons for proposing to restore the MSD column and the estimated economic impacts (Ex. 1; 75 FR 4728).

Small Business Teleconferences

On January 25, 2011, OSHA announced that the Agency had decided to seek additional input from small businesses on the impact of the proposal through outreach in partnership with the SBA Office of Advocacy and, therefore, was temporarily withdrawing the proposed rule from review by the Office of Management and Budget. On March 23, 2011, OSHA announced that, together with the SBA Office of Advocacy, the Agency would hold three teleconferences on April 11-12, 2011 to reach out to small businesses. The purpose of the teleconferences was to gather information from small businesses about their current recordkeeping practices, including their experiences recording work-related MSDs, and the impact they believe the proposal would have on them. OSHA also provided the following information about the teleconferences:

• OSHA and the SBA Office of Advocacy would select the small business participants for the teleconferences;
• The public would be invited to listen to the teleconferences, but only selected small businesses could participate;
• In advance of the teleconferences, OSHA would provide participants with background information on the proposed rule and a list of questions and issues for discussion;
• The teleconferences would not be electronically recorded or transcribed;
• OSHA staff would take notes during the teleconferences and prepare a summary report that would not identify the source of specific comments;
• Small business participants also could send written comments following the teleconferences; and
• After the teleconferences, OSHA would reopen the rulemaking record for the limited purpose of allowing interested persons, particularly small business, to comment on the teleconferences and the issues raised by the participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Ex. 0139).

Sixteen small businesses, with employment ranging from about 10 to more than 400 employees, participated in the three teleconferences (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Appendix A, Ex. 0139). In addition, dozens of interested persons listened to the teleconferences in person or by telephone.

OSHA has prepared a summary of the participants' comments during the teleconferences and has placed the summary in the public docket for this rulemaking (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Ex. 0139). The document summarizes the topics the participants discussed, including their current recordkeeping practices, how they determine the work-relatedness of MSDs, how the participants believe the proposed rule would change their recordkeeping practices, benefits of the proposed rule, and other issues the participants raised. The summary document also includes the list of teleconference participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements Appendix A, Ex. 0139) and the background materials and list of discussion issues that OSHA provided to the small business participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Appendix B, Ex. 0139). The background materials contain information on the proposed and existing recordkeeping requirements, the need for the proposed rule, updated cost estimates of the proposed rule and economic impacts on small businesses, and OSHA's existing recordkeeping forms. Interested persons may read and download the summary and appendices at Docket Number OSHA-2009-0044 at http://www.regulations.gov. The summary and appendices also are available on OSHA's Web page at http://www.osha.gov.

Public Participation

OSHA invites comment, particularly from small businesses, on the small business teleconferences by the participants. Interested persons must submit comments by June 16, 2011.

You may submit comments and attachments by one of the following methods: (1) Electronically at http://www.regulations.gov,, which is the Federal eRulemaking Portal; (2) by fax; or (3) by hard copy. All submissions must identify the Agency name and the OSHA docket number (Docket No. OSHA-2009-0044) or RIN number (RIN No. 1218-AC45) for this rulemaking. You may supplement electronic comments by uploading attachments electronically. If, instead, you wish to submit a hard copy of the attachments, you must submit those materials to the OSHA Docket Office (see ADDRESSES section). The additional materials must clearly identify your electronic comments by name, date, and docket number, so OSHA can attach them to your submission.

Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at [phone] (TTY [phone]).

Access to Docket

Comments in response to this Federal Register notice are posted without change at http://www.regulations.gov. Therefore, OSHA cautions individuals about submitting personal information such as social security numbers and birthdates. Exhibits referenced in this Federal Register notice also are posted at http://www.regulations.gov. Although all rulemaking documents are listed in the http://www.regulations.gov index, some information (e.g., copyrighted material) is not publicly available to read or download through that Web page. All comments and exhibits, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information about using http://www.regulations.gov to submit comments and access the rulemaking docket is available on that Web page. Contact the OSHA Docket Office for information about materials not available through that Web page and for assistance in using the Internet to locate docket documents in the rulemaking docket.

Electronic copies of this Federal Register notice and the proposed rule are available at http://www.regulations.gov. This notice, the summary of the small business teleconferences, the proposed rule, news releases and other relevant information also are available at OSHA's Web page at http://www.osha.gov. For specific information about OSHA's Recordkeeping rule, go the Recordkeeping page on OSHA's Web page.

OSHA will carefully review and evaluate the comments, information, and data received in during this limited reopening as well as all other information in the rulemaking record, to determine how to proceed.

Authority and Signature

This document was prepared under the direction of David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under Sections 8 and 24 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), the Administrative Procedures Act (5 U.S.C. 553), and Secretary of Labor's Order No. 4-2010 (75 FR 55355 (9/10/2010)).

Signed at Washington, DC, on May 11, 2011.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.